THE INDUSTRIAL TRIBUNALS

CASE REF:	253/06

CLAIMANT:			Ian Anthony Gallagher

RESPONDENT:		BT PLC

DECISION ON A PRE-HEARING REVIEW
The finding of the tribunal is that the claimant’s claim for disability discrimination is dismissed.  His claim for unfair dismissal may proceed to hearing.

Constitution of Tribunal:
Chairman (sitting alone):		Mr B Greene

Appearances:
The claimant was represented by Mr Bell, of CWU.
The respondent was represented by Mr O Reilly, Barrister-at-Law, instructed by Napier & Sons, Solicitors.

Sources of evidence

1.	The tribunal heard evidence from the claimant.  The respondent did not adduce any evidence.  The tribunal also had regard to the originating claim, the response, a written statement from the claimant, two bundles of agreed documents amounting to 47 pages, government guidance on applying the Disability Discrimination Act 1995 and two letters from the CWU of 1 and 4 September 2006.

The claim and the defence

2.	The claimant claimed unfair dismissal and disability discrimination.  The respondent denied the claimant’s claims.  It did not accept that the claimant suffers from a disability within the meaning of the Disability Discrimination Act 1995 and sought a hearing to determine whether the claimant suffers from a disability within the meaning of the Disability Discrimination Act 1995.  

The issues

3.	Accordingly this application was listed to determine the preliminary issue:-

“Whether the claimant has a disability within the meaning of the Disability Discrimination Act 1995.”

Findings of fact

4.	(a)	The respondent employed the claimant as a customer service engineer from 31 August 1993 until 28 February 2006.	
			
	(b)	On 28 February 2006 the respondent dismissed the claimant on the grounds of capability through ill-health.	
			
	(c)	The claimant was off  work from 4 July 2001 to 10 January 2006 on thirty four occasions amounting to three hundred and thirty one days through illness.  The vast majority of the absences relate to bowel, stomach or stress problems. 	
			
	(d)	While there does not appear to have been an authoritative diagnosis of irritable bowel syndrome in relation to the claimant there seems to be an acceptance in the nine medical reports submitted that he does suffer from that condition.  That diagnosis is not challenged in any of the reports.  I am satisfied that the claimant does indeed suffer from irritable bowel syndrome. 	
			
	(e)	It appears that the claimant also has been afflicted with stress and anxiety over the years.  It is not clear whether the irritable bowel syndrome is a result of or a cause of the stress and anxiety.  Undoubtedly irritable bowel syndrome can be affected by stress and anxiety.	
			
	(f)	The respondent accepts that the claimant has an impairment but asserts that it does not have a substantial effect on day-to-day activities. 	
			
	(g)	The claimant states that the day-to-day activities that are affected are mobility, continence and ability to concentrate.  He suffers from severe abdominal pain, diarrhoea, nausea, periodic vomiting, depression and back pain.	
			
	(h)	His mobility is affected during bouts of the illness which last for                 four to five days, by reason of the pain and the need to remain close to a toilet.  	
			
	(i)	His ability to concentrate is affected by his difficulty in sleeping and nausea.	

The law

5.	(a)	For the purposes of the Disability Discrimination Act 1995 a person has a disability if he has a physical and mental impairment which has a substantial and long term adverse effect on his ability to carry out day-to-day activities (Section 1(1) of the 1995 Act).	
			
	(b)	A substantial effect is one that is more than minor or trivial.  It reflects the general understanding of  disability as a limitation going beyond the normal difference in ability which may exist among people. 	
			
	(c)	Day-to-day activities include, inter alia, mobility, continence and ability to concentrate.	

Application of the law and the findings of fact to the issues

6.	(a)	The claimant has a physical impairment, ie irritable bowel syndrome.	
			
	(b)	There was little or no detail in the evidence presented how the physical impairment affects his ability to carry out his normal day-to-day activities.	
			
	(c)	Specifically the evidence adduced did not establish how the physical impairment affects his mobility, continence and ability to concentrate.	
			
	(d)	I am not satisfied that the impairment has a substantial adverse effect on his ability to carry out his normal day-to-day activities.  	
			
	(e)	The physical impairment has lasted for at least twelve months, which is not in dispute, and is therefore long-term.	
			
	(f)	For the purposes of the Disability Discrimination Act 1995 the claimant does not have a disability.	
			
	(g)	The preliminary issue is answered in the negative.  Accordingly his claim for disability discrimination is dismissed.	
			
	(h)	The claimant’s claim for unfair dismissal may now proceed to hearing.	

Chairman:

Date and place of hearing:	19 September 2006, Belfast

Date decision recorded in register and issued to parties: